Mediation has not been cure for hospital, nurses

GREENFIELD — A federal mediator has attended contract talks between Baystate Franklin Medical Center and its nurses since summer 2012 — but his presence has not helped the two sides reach a settlement.

Under debate this month between the hospital and the Massachusetts Nurses Association is whether mediation alone will be able to end their nearly two-year contract dispute. The Massachusetts Nurses Association proposed binding arbitration earlier this month but the hospital said it wasn’t interested in a settlement imposed on both sides by a neutral third party.

The fundamental difference between mediation and arbitration is in who makes the final decision, said George Sulzner, an arbitrator and retired University of Massachusetts political science professor.

During a contract dispute, mediators work with both sides to try to find a compromise and creative solutions to a problem. In arbitration though, a third party reviews both sides’ proposals and chooses one or the other, so there’s more at risk for the organizations, said Sulzner.

“Mediation is something the parties usually favor if there is some confidence they can reach an agreement,” he said. “(But) mediation doesn’t go on endlessly. There’s a point in time when a mediator can’t solve your problems.”

A debate over the mediator’s role

Joe Dubin, a 13-year mediator who works for the Federal Mediation and Conciliation Service, has attended every session since summer 2012. Both the hospital and nurses union praised his work.

But representatives from the two sides have very different interpretations of the level to which Dubin has been utilized in contract talks. They also accuse the other party of slowing mediation efforts.

Kerry Damon, the hospital’s director of human resources, said that Dubin was asked early on to sit back and listen during face-to-face contract talks. She said that when the two sides caucus in separate rooms, he occasionally goes back and forth to ask clarifying questions of the parties but rarely leads the discussion or provides original solutions of his own.

“At the last session, I asked the MNA, ‘Why don’t we let Joe take on a more active role?’” said Damon. “Meaning let him truly mediate these discussions and really work in the way his role is intended to be. They didn’t answer my question.”

Union spokesman Mike Fadel firmly disagreed, saying that there has never been a request by either party to limit Dubin’s work.

“The nurses support any role the mediator believes will be helpful in fashioning a settlement,” said Fadel. “He has offered various suggestions along the way. He has expressed optimism for several of our revised approaches, only to see them rejected.”

John Arnold, spokesman for the federal mediation agency, said he could not clarify Dubin’s role, citing a need to keep negotiations confidential.

An arbitration proposal

The union believes that “arbitration is the way out of this dispute,” said Fadel. Nurses, who are willing to live with whatever ruling is given, simply want the contract dispute to end.

But Damon believes that more mediated negotiation sessions — including some where the two sides are separated with Dubin acting as messenger instead of meeting face to face — need to occur before arbitration is considered.

“Bringing an arbitrator to make a decision based on a day or two of presentations ... you don’t know (with) all the complexities and the depth that that person will understand what the dispute is,” she said. “Joe gets it. He understands everything we’ve talked about.”

Should the decision go before an arbitrator, the onus would be on the two sides to provide relevant information in their arguments, said Sulzner, the retired UMass professor who has arbitrated for over 30 years with the Postal Service.

The overtime pay model has been the key debate between the nurses and hospital. The union wants to continue the status quo of daily overtime, while the hospital wants to change to a weekly model where nurses only receive bonus pay when they work beyond 40 hours.

In this case, Sulzner said that both sides would likely present evidence that a similar proposal to theirs was used by other Massachusetts hospitals.

An arbitration hearing, which runs like an informal trial, typically lasts no longer than two to three days, he said. An arbitrator then needs to make a decision within 30 days of the hearing.

In Sulzner’s eyes, police, firefighters and nurses are the three professions that use arbitration most often.

Contract talks continue

Meanwhile, the negotiation sessions will continue next Wednesday with Dubin in attendance.

The federal government provides the mediator at no charge to the hospital or nurses. Unlike court-ordered mediation, a representative is only sent when both sides have agreed to participate, said Arnold, the agency spokesman.

Mediators are not bound to a particular set of strategies or schedule in their work, but Dubin does check in with a regional supervisor, said Arnold.

Sulzner said that mediators can elect to stop participating in a dispute if he or she feels the sides can’t reach an agreement.